On Friday, 20 October 2023, the final amendments to the Worker Protection (Amendment of Equality Act 2010) Bill 2023 were agreed upon, and on 26 October 2023, the bill received royal assent to become the Worker Protection (Amendment of Equality Act 2010) Act 2023. The law is expected to come into force in October 2024―12 months after the day it was passed.
The Worker Protection (Amendment of Equality Act 2010) Bill was introduced by Liberal Democrat MP Wera Hobhouse in June 2022 to “strengthen the legislative protections against workplace sexual harassment.”
The legal definition of harassment is set out at Section 26 of the Equality Act 2010. In summary, harassment is subjecting someone to unwanted conduct which is either related to a relevant protected characteristic or is unwanted conduct of a sexual nature where the conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
According to a poll from the Trades Union Congress (TUC) published in May 2023, 43% of women had experienced at least three incidents of sexual harassment at work. The poll also found that less than 30% of women who had experienced sexual harassment at work had told their employers about it. A report produced by the Equality and Human Rights Commission based on an online survey from individuals who had experienced sexual harassment found that half of those surveyed had not reported the harassment because of the following factors and barriers:
- The organisation did not take the issue seriously;
- The alleged perpetrators, particularly senior staff, would be protected;
- A fear of victimisation; and
- There was a lack of appropriate reporting procedures.
The Worker Protection (Amendment of Equality Act 2010) Bill was drafted to ensure that there was a standalone duty for employers to “take responsible steps to prevent sexual harassment within their organisations” and “take proactive steps to address sexual harassment.”
The first draft of the bill proposed to:
- Create a statutory duty requiring an employer to take all reasonable steps to prevent sexual harassment of employees; and
- Reintroduce employer liability for third-party harassment―a provision that had previously existed under Section 40 of the Equality Act 2010 before being repealed in October 2013.
As the bill passed through Parliament, there were amends to these proposals, the most notable of which were made following a debate in the House of Lords in July 2023. The House of Lords raised concerns that reintroducing employer liability for third-party harassment would cause organisations practical difficulties in implementing and managing this liability and further would impact and curtail free speech.
As a result of objections raised by the House of Lords, the bill was amended so that the proposals relating to harassment by third parties were entirely removed.
The reintroduction of protection for employees from third-party harassment, such as clients and customers, was seen for many as a key provision of the bill, particularly given the rise in hostility and harassment in key industries such as retail and hospitality. Although Ms Hobhouse agreed to the removal of protection for third-party harassment, she also stated that whilst such “incidents of third-party harassment will continue not to be covered by the law, other than in extreme cases resulting in clear personal injury or where a criminal offence has been committed” there remained “unfinished business”. Given these comments, and the support for reinstatement of Section 40 of the Equality Act 2010 by the TUC, further legislation regarding employer liability for third-party harassment remains a future possibility.
The proposed statutory duty on employers to prevent sexual harassment was also amended such that there is still a new duty to take reasonable steps to prevent staff from being sexually harassed at work, but the requirement to take “all reasonable steps” has been reduced to “reasonable steps.”
Speaking in the House of Commons on 20 October 2023, Ms Hobhouse commented that the narrowed scope of the proposed statutory duty meant that:
“The tribunals would apply a lower threshold when assessing a breach of the employer duty compared with the original drafting of the bill. The Equality Act 2010 already contains a statutory defence that requires an employment tribunal assessment of whether an employer took all reasonable steps to determine legal liability. The amendment will not change the Equality Act’s existing statutory defence but will create a different test for the new duty on employers to prevent sexual harassment. The employer duty will still send a strong signal to employers that they need to take action to prioritise prevention of sexual harassment and ultimately improve workplace practices and cultures.”
Notwithstanding the amends to the act in Parliament, the new legislation does place a duty on employers to prevent sexual harassment. This will require employers to take a more proactive approach given that in addition to the new duty to take reasonable steps to prevent sexual harassment in the workplace, the Equality Act will enable employment tribunals to increase compensation by up to 25% in claims where the employer has been in breach of this new duty.
The new law is expected to come into force in October 2024; however, given the extant obligations on employers regarding a duty of care to look after the well-being of employees and provide a safe place of work, organisations would be well advised to consider their current policies and procedures regarding harassment now.
Immediate practical steps for organisations to consider include, but are not limited to:
- Demonstrating a clear zero-tolerance attitude towards harassment through policies, training and procedures;
- Creating a culture which encourages employees to speak up and feel supported in reporting inappropriate behaviour;
- Ensuring that the workforce at all levels knows how to identify and report inappropriate actions;
- Ensuring that managers know how to manage and address allegations of inappropriate behaviour;
- Ensuring that immediate action is taken to investigate and address allegations of inappropriate behaviour; and
- Ensuring there is an effective support plan in place for any employees affected by harassment.
A final point of note for employers is the government’s indication of support to the Equality and Human Rights Commission to create a statutory code of practice with a greater focus on working with employers. As yet, we are waiting on further information regarding when the statutory code of practice will be published and whether this will introduce new guidance or will be drawn mainly from the existing EHRC nonstatutory guidance.